The Senate 'Makes Good' On Congress' Antitrust Promises

Katz, Marshall & Banks partners Debra S. Katz and David J. Marshall published an article in Law360 on August 6, 2015, entitled “The Senate ‘Makes Good’ on Congress’ Antitrust Promises.” This article discusses the Senate’s passage of the Criminal Antitrust Anti-Retaliation Act, a proposed amendment to the Antitrust Criminal Penalty Enhancement and Reform Act. Following a 2011 recommendation from the U.S. Government Accountability Office, the Criminal Antitrust Anti-Retaliation Act would ensure that innocent parties suspicious of antitrust wrongdoing would be protected from retaliation, whether they report the suspicion internally or to the Department of Labor. The bi-partisan amendment, sponsored by Sen. Chuck Grassley (R-Iowa) and co-sponsored by Sen. Patrick Leahy (D-Vt), allows those retaliated against for engaging in protected activity to seek redress for retaliation such as discrimination, termination, demotion, suspension, and harassment. Modeled on the Sarbanes-Oxley Act of 2002, the amendment would also allow for a “kick-out” provision to file in federal court if the secretary of labor fails to issue a decision within 180 days of filing. As this proposed Act simply renders existing antitrust policies more tenable, approval from the House would bode well for potential whistleblowers as well as all concerned with antitrust violations. According to Debra S. Katz, one of the article’s authors, “The next step is to open the way to even more effective enlistment of insiders by offering financial incentives to those who come forward and assist in enforcement of antitrust laws. The SEC whistleblower program has been tremendously effective in encouraging individuals to report violations of securities laws. The same types of financial incentives should be offered to insiders who report anti-trust violations to appropriate governmental authorities and regulators.”